Official Status for Gaelic: Prospects and Problems

[published in Scottish Affairs, 21 (1997), 95-118]

As part of the Gaelic renaissance of recent years, there have been
increasing demands to provide the Gaelic language with some form of
official status to recognise and further its role in Scottish national
life. At present, Gaelic enjoys no such status, and its rôle in
law and government is minimal, as it has been for centuries. Today,
however, the growing influence of Gaelic organisations, along with the
relative good-will of government, suggest that Gaelic may shortly come
to achieve some measure of official status within Scotland.

This paper will review the background and present limitations of
Gaelic's formal status, and consider the prospects and problems
relating to possible reform. Particular emphasis is placed upon the
complexities and difficulties accompanying a possible expansion of the
rôle of Gaelic within the Scottish legal system.

Responding to increased concern within the Gaelic community about
the vulnerability of governmental provision for Gaelic in the
prevailing climate of severe austerity, the Gaelic development
authority Comunn na Gàidhlig (CnaG) has recently proposed that
Gaelic be given "secure status", a position of "equal validity" to
that of Welsh, which has enjoyed statutory recognition since 1967. The
details of this proposed status would be developed by a quasi-official
body akin to the Welsh Language Board established by the Welsh
Language Act 1993, and that Act would serve as a model for Gaelic
legislation (Securing the Future for Gaelic (1997), pp.
1-3).

The new Labour government appears broadly supportive of the
principle of official status for Gaelic, and has taken the important
step of appointing the first-ever Minister for Gaelic, Brian Wilson.
Crucial details remain to be resolved, however, and in the broader
context Gaelic is not probably not seen as an especially high
priority. Other Scottish parties take a similar view, combining
support with indifference: the Scottish National Party has long been
committed to granting Gaelic equal status with English "so that either
[language] could be used in dealing with the State and its public
services anywhere in Scotland", while the Scottish Liberal Democrats
would ensure that Gaelic and English are "treated on a basis of
equality, so far as is both appropriate and practicable". In contrast,
the Tories have resolutely opposed proposals of this kind in
government and in opposition.

Although the time appears propitious for Gaelic in many ways, the
contemporary position of the language cannot be separated from its
history. As Charles Withers warned in his landmark history of the
geographical decline of Gaelic in Scotland, "Gaelic's minor role in
public life is the result of a longstanding separation between the
language and 'authority' — political control, cultural prestige,
[and] social status", and "the restoration of Gaelic to a respected
position as one of Scotland's languages must contend with centuries of
alienation in education and public life, linguistic retreat, economic
decline and lack of social status" (Withers 1984, pp.241, 251).

The Significance of Official Status

"Official status" represents a general rather than a specific
concept: a language may be recognised by a government in many
different ways, with some of those ways being much less meaningful and
significant than others. Granting official status may impose concrete
obligations upon government and private actors, and give rise to major
changes in the language's public rôle; or it may involve nothing
more than a mere verbal declaration by government, unaccompanied by
any binding financial or legal commitments. Such non-binding
declarations, in turn, may be a useful stepping-stone to more
important changes or simply a "cruel hoax played out by government
agents for crassly utilitarian reasons" (Ruiz 1990, p.16). Needless to
say, substituting the neologistic term "secure status" for the more
familiar "official status" does nothing to obviate these
difficulties.

In the Gaelic context, discussion and debate about official status
are only beginning to move beyond generalities. Official status tends
to be presented as some sort of magic wand rather than a specific
political proposal that requires both short-term tactics and a
long-term strategy. Hard, political choices remain to be made about
what kind of official status would be realistic, appropriate and
useful for Gaelic, and those choices need to be translated into
concrete and highly detailed proposals. At the same time, there is a
real risk that poorly thought out or ill focused efforts might fail,
or merely produce a token or unhelpful reform.

One authoritative definition of "official language" is given in the
United Nations' 1981 Study of the Problem of Discrimination Against
Indigenous Populations: "a language used in the business of government
(legislative, executive, administrative and judicial) and in the
performance of the various other functions of the state" (Zall & Stein
1990, p.262). This definition emphasises the use of the language by
government itself, as a working medium for its internal operation; the
right of citizens to use the language in dealings with government
might also be taken into account.

The most important, yet most intangible, aspect of granting
official status to a language is its rôle in increasing the
stature and prestige of that language, and in "creat[ing] a culture of
bilingualism within society and the state structures" (Morgan
interview 1996). Other formerly marginalised languages that have now
achieved official status are like Gaelic in having been traditionally
excluded from corridors of power, with the language and its speakers
denigrated in various ways, so that their new status in relation to
the state represents a powerful declaration of changed fortunes and
new-found respect.

In Wales, where the Welsh language has achieved equal validity with
English by virtue of the Welsh Language Acts of 1967 (1967 c.66) and
1993 (1993 c.38), the use of Welsh in legislation and regulations, on
a wide variety of official forms, licences and certificates, and in
the nation's courtrooms, has been an important "image-builder" for the
language. "The mere fact of being seen to be used in contexts where it
was previously excluded [can] increase the esteem in which [a]
language is held" (Bentahali & Davies 1993, pp.355-74, 367).

Additionally, granting official status to a previously excluded
minority language often has the political dimension of granting
recognition to a previously excluded minority group. Dòmhnall
Iain MacLeòid has argued along these lines: "nam biodh
cùirtean, polasmain agus gach meur dhen Riaghaltas a'
cleachdadh na Gàidhlig, bhiodh Gàidheil na bu deiseile
gabhail riutha chan ann mar rud coimheach a bha air a sparradh orra o
muigh ach mar rud a bhuineadh dhaibh" ("if courts, policemen and
every branch of government used Gaelic, Gaels would be more ready to
take to them not as something alien thrust upon them from outside but
as something that belonged to them") (MacLeòid 1976, pp.12-27,
14). Although this argument is not entirely lacking in force, this
aspect is more significant in other linguistic contexts where, unlike
Gaelic in Scotland, there remains a significant population of
minority-language monoglots, or there is a clear ethnic distinction
between the minority-language and majority-language populations.

At a more practical level, a grant of official status may also
provide legal guarantees and preclude hostile government action
against the use of the language. In the Gaelic context, legislation
could impose meaningful constraints on government policy toward
Gaelic, for example in the realm of education, where Gaelic provision
is often incomplete and unsteady. Providing concrete legal guarantees
of Gaelic's position would correct the situation described by Aonghas
Pàdraig Caimbeul:

[Since our language does not have legal status, that means that
every penny of support that we get from the government depends on the
great goodwill, or ill-will, of the non-Gaels. If the purse is full,
and they feel kindly toward us, they'll give us a penny or two; if the
purse is getting empty, and they feel in a bad humour, they'll cut
back all the support.] (Caimbeul 1996, p.1)

As discussed below, however, Gaelic could very well be granted a
form of "official status" that did not actually constrain the
discretionary power of government, and seeking a more binding form of
recognition would give rise to a number of difficult problems.

Unquestionably, there are dangers in placing excessive emphasis on
Gaelic's rôle in law and government rather than the day-to-day
life of Gaelic-speaking communities, and it is arguable that the
question of official status for Gaelic has been attracting
disproportionate attention and energy of late. Prominent linguist
Joshua Fishman has criticised the Gaelic movement in Scotland for its
"well nigh complete reliance on the school and other higher order
'props'" — mechanisms that do not focus directly on "the
re-establishment of young families of child-bearing age in which
[Gaelic] is the normal medium . . . of communication and/or other
culturally appropriate home, family, neighborhood and community
intergenerational vernacular activity" (Fishman 1991, pp.380, 91). Any
campaign seeking official status for Gaelic must keep this fundamental
goal in mind.

Background: The Current Position of Gaelic

At present Gaelic enjoys no official status in the United Kingdom or
even within Scotland. There is no Act of Parliament conveying such
status to the language, as with Welsh; nor, given Britain's lack of a
written constitution, is there any kind of constitutional protection,
such as Irish enjoys in the Irish Republic. Today the universal
language of law and government in Scotland is Standard English, which
slowly won dominance over Scots, which had itself supplanted Gaelic,
French and Latin during the Middle Ages.

Significantly, the dominant position of English is the result of
long-standing custom rather than official provision; no language in
Scotland (or indeed in any part of the U.K. other than Wales) enjoys
official recognition at this time. Because the position is dictated by
custom rather than express provision, the Government is accurate, if
disingenuous, in its long-standing position that "[t]here are in fact
no explicit statutory limitations on the use in official or legal
matters of the Gaelic language which already enjoys equal validity
with English" (MacKinnon 1991, p.113).

Gaelic is recognized as a language only in an obscure provision of
immigration law and in two specialised statutes pertaining directly to
the Gàidhealtachd. Schedule 1 to the British Nationality
Act 1981 (1981 c.61, Schedule 1, s.1-(1)(c)) enumerates among the
requirements for naturalisation as a British citizen that the
applicant "has a sufficient knowledge of the English, Welsh or
Scottish Gaelic language". The practical significance of this
provision is now very limited in that there are few if any non-U.K.
nationals able to speak Gaelic but unable to speak English.

The landmark Crofters Holdings (Scotland) Act 1886 (49 & 50 Vict.
c.29.), enacted as part of a reformist strategy to quell land unrest
in the Highlands and Islands, required that at least one of the four
members of the Crofters Commission should be a Gaelic speaker, a
provision that remains in effect in the present successor statute, the
Crofters (Scotland) Act 1993 (1993 c.44, s.3(3)). To similar effect is
the Scottish Land Court Act 1993 (1993 c.45, s.1(5)), requiring a
Gaelic-speaking member on the seven-member Land Court, which deals
with non-crofting land disputes in the Highlands and Islands as part
of its national remit.

Gaelic being nearly universal in the crofting communities at the
time of the 1886 Act, this membership provision was intended to make
the Crofters Commission seem more accessible and legitimate. The
legislation did not specify that Gaelic could be used by litigants,
although this was "[t]he clear implication" (Evans 1982, p.286), or in
the actual operation of the court." Originally many cases were
conducted entirely in Gaelic" (Stair Memorial Encyclopedia
1988: Vol. VI, p.454) but because of the drastic decline in Gaelic
speakers over the last century, Gaelic now has almost no rôle
even though its use is still permitted. Similarly, the Land Court does
not "use[] or encourage the use of the language in normal
communication" (Còr na Gàidhlig 1982, p.27).

The general position of Gaelic in the law courts of Scotland is
considerably less favourable. Under existing law, set forth in the
1982 decision in Taylor v. Haughney, litigants in Scottish
courts have no right to testify or present their case in Gaelic unless
they are unable to use English. This rule accords Gaelic no special
position based upon its past and present rôle in Scottish life;
Gaelic is simply treated in the same manner as other "foreign"
languages.

Taylor arose from the prosecution of Iain Taylor, then
director of the Gaelic college Sabhal Mòr Ostaig, for defacing
English-only road signs on Skye. At his trial in Portree Sheriff
Court, Taylor moved the court to have the trial conducted in Gaelic,
but the request was denied in light of his ability to use English.
Taylor then took an appeal to the Court of Justiciary, which rejected
his position, relying on that court's 1841 Alexander McRae
decision, which had held it improper to allow a witness to testify in
Gaelic, through an interpreter, when the witness could speak English
"with perfect distinctness".

Although Taylor's terms were unambiguous and harsh, the
decision simply ratified existing practice in the Highlands and
Islands, whereby permission to testify in Gaelic was essentially a
matter for individual judges' discretion. This discretion has
sometimes been used to disallow Gaelic testimony; and the courts'
often unwelcoming attitude has discouraged requests to use Gaelic,
even from people who would probably be better served using the
language of their choice (MacLeòid 1976, p.18).

In contrast, a limited degree of official status does exist at
local government level. Comhairle nan Eilean, the Western Isles
Council, initiated a bilingual policy in 1975 (still in effect
following local government reorganisation), which provides "that the
Western Isles should be a fundamentally bilingual community in which
Gaelic and English are used concurrently as the languages of
communication so that the people of the area can have the choice of
language in as many situations as possible". Consequently, many
Comhairle meetings are conducted in Gaelic, with simultaneous
translation facilities available, although at most lower levels of
Comhairle operation English remains the predominant working language
and bilingualism is not asserted with particular vigour (Galloway
1995, pp.194-95).

The Stewart Bill

Sporadic efforts to improve the official position of Gaelic have been
made throughout this century, but the issue has only reached
Parliament once, on February 13, 1981, when the House of Commons
considered the Gaelic (Miscellaneous Provisions) Bill, a private
member's bill introduced by the late Donald Stewart, then SNP MP for
the Western Isles. This bill, which would have, among other things,
authorised the use of Gaelic in legal proceedings and the provision of
official forms in Gaelic, died an early death as a result of delaying
tactics by Conservative MPs who used the debate to preclude an
unrelated measure from coming to a vote (MacKinnon 1991, p.111). There
have been no subsequent attempts to introduce legislation in this
area. The fate of the Stewart bill deserves close scrutiny not only
because of its importance in the unfortunately short history of
Gaelic's legal status, but also because the debate revealed major
barriers that continue to stand in the way of an improved legal
position for Gaelic.

Three strands of argument dominated the brief but acrimonious
parliamentary debate, which was marred by an extraordinary series of
hostile attacks and offensive, patronising remarks. First, there were
declarations of raw prejudice against Gaelic and Gaelic speakers, like
that of Martin J. O'Neill, Labour member for Clackmannan and East
Stirlingshire, who mused about possible difficulties from "a drunken
Highlander appearing in court on a Monday morning claiming the right
to give evidence in Gaelic."

Second, there were skeptical, utilitarian queries about the need to
expand Gaelic's rôle given its weak demographic position, and
stereotypical comments presenting Gaelic as a language unsuited to the
practicalities of the modern world, a living fossil to be reserved for
songs, poetry, and other forms of "cultural" expression. Ian Sproat
(Conservative, Aberdeen South) suggested that once Gaelic achieved
official status the government would be required to print "income tax
forms for Cornwall . . . in bilingual Cornish [sic]", while
Labour's George Robertson (MP for Hamilton and now Minister for
Defence), though voting for the bill, argued that a knowledge of
Esperanto would be more useful than a knowledge of Gaelic.

This problem of demographics continues to resonate at a broader
U.K. level. It provides a source of amusement for those to whom Gaelic
is distant and irrelevant, like London MP Harry Greenway, who proposed
in a 1993 debate on Gaelic broadcasting that the Government should
establish "a separate television channel for cockneys" given that
there were "several million cockney speakers", far more than the
depleted Gaels. Although Greenway evidently did not intend his
proposal to be taken seriously, the larger question of minority
language provision is a matter of significant concern in Westminster,
confronted with increasing concentrations of linguistic minority
communities (principally Asian) in the larger English cities,
populations whose linguistic rights and needs the Government has so
far not been generous in recognising.

Third, and perhaps most important, there were challenges to
Gaelic's past and future significance in the life of Scotland as a
whole, rather than merely the Gàidhealtachd. Alexander
Fletcher (Conservative, Edinburgh Central) adapted the "West Lothian
Question" on devolution and posed the "East Lothian Question" (so
named because at the 1981 census East Lothian had the lowest
proportion of Gaelic speakers in its population): "how far we should
go in providing a formal position for Gaelic in those areas where
there is no [sic] indigenous Gaelic linguistic or cultural
tradition". In raising this issue, Fletcher and others went so far as
to warn of Gaelic cultural irredentism. Fletcher argued, for example,
that it would "build up resentment" if a provision making Gaelic court
interpreters available were to be applied throughout Scotland, while
Ian Sproat declared that the bill was "a first step towards the
foisting of Gaelic on people in Scotland who do not want it foisted
upon them".

The Highland Line and the Question of Scots

The East Lothian Question remains a critical problem for proponents of
official status for Gaelic, who must wrestle with the nature of
Gaelic's rôle in Scotland — whether it is the true
national language, whether it is a national language at all.
Official status, or different forms thereof, could be granted
throughout Scotland (now only 1.35% Gaelic-speaking according to the
1991 census), only in the historic Gàidhealtachd (much,
indeed most, of it now under 5% Gaelic-speaking), or only in the
present-day "Gaelic-speaking areas", whose delineation would be
difficult. A critical problem with limiting official status for Gaelic
to Highland or Island areas, however, is the extent of the Gaelic
diaspora. According to the 1991 census "under half of all Gaelic
speakers (45.7%) lived in the residual Gaelic area of the Hebrides and
Highland West Coast parishes" (MacKinnon 1995, p.3), and indeed most
of this non-heartland majority resided in the Central Belt. Thus, a
form of official status that failed to extend throughout Scotland
would exclude the majority of Gaelic speakers.

This problem has dogged proponents of official status for some
time. For example, the SNP during the 1970s shifted from proposing an
expansion of Gaelic's rôle in "Gaelic areas" to a broader policy
covering the whole of Scotland (Thomson 1990, p.16), but in 1976
Dòmhnall Iain MacLeòid proposed dividing Scotland into a
South Region and a North Region (itself to be sub-divided into a
"làn [full]-Ghàidhealtachd" in the Outer
Hebrides and a "leth [half]-Ghàidhealtachd" in
Argyll and the former Highland Region), with different degrees of
official Gaelic use in the different areas (MacLeòid 1976,
p.14). Presumably Gaelic's rôle in any South Region, which would
probably contain upwards of 90% of Scotland's population, would be
minimal.

Although attitudes have softened over time, and Gaelic has been
increasingly viewed as an important element of Scottish national
identity, there remains a degree of alienation from, if not outright
hostility to, Gaelic in Scotland, both Lowland and Highland.
Certainly, as John Galloway warns, "the notion that Gaelic/English
bilingualism might have a place in the mainstream domains of Scottish
public life has yet to gain full acceptance" (Galloway 1995, p.16). It
would be safe to predict very real opposition to efforts to provide
official status to Gaelic, especially if such status were to have a
visible impact on Lowland areas. According to Derick Thomson, Gaelic
"is treated with respect by a significant proportion of Scottish
people, although there is another section of the population that
prefers to offer jibes" (Thomson 1994, p.229). John MacInnes has noted
that "there is still a deep reluctance in certain quarters . . . to
acknowledge that Gaelic has any historical connection with Scotland
south of the Highland Line" (MacInnes 1982, p.128).

In contrast to Ireland, and especially to Wales, where the
indigenous Celtic languages have been linchpins of national identity,
Gaelic has not played an important rôle in Scottish nationalist
politics. As Máire Ní Annracháin points out, this
is "because Scots, and not Gaelic, has come to be so widely accepted
as the Scottish national alternative to English" (Ní
Annracháin 1991, p.44). Gaelic has been at the fringe of
political life, and Gaelic groups have tended to devote their energies
to matters other than politics.

An additional, highly delicate problem in this area involves the
relationship of a expanded rôle for Gaelic in the Scottish legal
system with a similar expansion for the Scots "language", a proposal
with a large and vigorous constituency. Lowland Scots tend to have
much stronger feelings about Scots, which is perceived as something of
their own, than about Gaelic, which is often perceived as being
somehow alien, belonging exclusively to the
Gàidhealtachd.

Thus, as in long-standing SNP policy, proposals to provide official
status for Gaelic are often accompanied by calls for similar status
for Scots. This would be problematic in several respects, most simply
because it muddies the waters, making the issue more complex in
political and practical terms, and tending to make Gaelic's prospects
more shaky. Scots — even if classified as a language in its own
right rather than a mere "dialect" of English — is
unquestionably closely related to English; in Heinz Kloss' useful
terminology, Scots is an Ausbau language
vis-à-vis English, forming part of a dialect continuum
of closely related languages, while Gaelic, linguistically very
distant from English and thus clearly "different", is an
Abstand language (Kloss 1967). The Ausbau process of
"building away" Scots from English, deliberately emphasising its
points of divergence, would be particularly difficult with respect to
the high-register usages required for official purposes, where Scots
is not well developed. The problem for Gaelic is that its fate often
tends to be tied to that of Scots, and the peculiar problems of Scots
would tend to stand in the way of progress for Gaelic even if those
special problems had no relevance to Gaelic.

Practical Issues Concerning an Expanded Use of Gaelic Within the
Scottish Legal System

The position of Gaelic is fundamentally different from that of most
languages whose rôle in legal systems has sparked controversy.
In contrast to, for example, French in Canada or Belgium, most of
whose speakers are monolingual, all or almost all Gaelic speakers are
fully capable of understanding and using the majority language. Given
this reality of bilingualism, the fundamental legal issues concerning
language rights — issues of natural justice relating to the
right to understand the legal charges and proceedings with which one
is involved, as guaranteed by international human rights conventions
(Ó Máille 1990, pp.26, 31) — do not really arise
with Gaelic. In the sociolinguistic context of Gaelic, then, the
Taylor decision essentially operates to preclude the use of
Gaelic in Scottish courtrooms.

The problem of Gaelic as a language of the law is further
complicated by the fact that because of its historically impoverished
rôle in educational and institutional life very few Gaelic
speakers would feel comfortable using Gaelic rather than English in
complex legal settings even if they were given a free choice (cf.
Thomson 1994, p.231). While many Gaelic speakers might feel as
comfortable, or more comfortable, using Gaelic to communicate
day-to-day matters that might arise in legal contexts, for example to
describe what they observed as witness to a road accident or a crime,
it is likely that few would feel fully competent to analyse detailed
business transactions in Gaelic, let alone make a complex legal
argument to a judge when a client's assets or liberty were at
stake.

Recognising the tremendous symbolic and political importance of the
legal system, supporters of legal status for Gaelic often —
indeed perhaps too often, with unwarranted emphasis and attention
— propose granting the right to use Gaelic in legal proceedings.
The contours of this proposed "right" have not been mapped out with
precision. In fact, such a right could have a number of different
manifestations, and proponents of reform should make clear what they
want and why, lest they end up with something irrelevant or
unworkable. Following is an outline of some different
possibilities:

Gaelic could be used by parties or witnesses providing oral
testimony only when they are incapable of testifying in English. Under
Taylor, this is essentially the present position in Scottish
courts. It is also the position of Cantonese, Punjabi, and other
minority languages in Scotland — many of whose speakers are not
competent in English — and simply reflects basic principles of
natural justice and international human rights law.

Gaelic could be used by parties or witnesses to provide
testimony whenever they wish, irrespective of their ability to use
English. This position, enjoyed by Welsh in Wales and Irish in the
Irish Republic, is probably as far as any Scottish political party
would take the matter.

Gaelic could be used by parties, witnesses, or lawyers,
whenever they wish, at any stage of the proceedings, and irrespective
of their ability to use English. This is the position of Maori in New
Zealand under the Maori Language Act 1987 (Bates 1991).

Gaelic could be used by parties, witnesses, or lawyers, with a
right to insist that all other proceedings (testimony of
English-speaking witnesses, comments from the judge etc.) be
translated from English into Gaelic.

Gaelic would be used throughout the proceeding, and translated
into English only upon demand of a party. This position — which
applies in parts of Wales, as discussed below — seems far beyond
the sociolinguistic reach of Gaelic for the foreseeable future.

6. Gaelic to be used and not translated into English even upon the
demand of a party. Although seemingly absurd, this was the posture of
the 1936 Irish decision in The State (Buchan) v. Coyne, wherein
the defendant did not understand Irish yet a police sergeant provided
the crucial prosecution testimony in Irish and the judge both refused
an interpreter and delivered his judgement in Irish. Unsurprisingly,
the High Court quashed this decision, ruling that such an approach
flouted "fundamental principles of the administration of criminal
justice". Today, such a procedure would be a transparent violation of
international law, and is out of the question for Scotland for any
number of reasons.

The position of Welsh makes for an interesting comparison with
Gaelic, not only because it is a sister tongue contending with the
same dominant language and the same central government, but because it
fits in at different points on this spectrum. The Welsh Language Act
1967 grants a blanket entitlement to use Welsh in providing testimony
(point 2 on the scale above), but some lower-level courts in the more
strongly Welsh-speaking districts proceed entirely through Welsh,
especially in the Blaenau Ffestiniog county court, which has adopted a
policy of conducting all proceedings in Welsh unless otherwise
requested by a party. Even so, more than a third of cases in Blaenau
Ffestiniog are conducted in English because one of the parties demands
it. In the higher-level High Court and Crown Court, where Welsh may be
used but must then be translated in English, Welsh is in fact almost
never used: in 1991, only in one of 1,280 Crown Court cases and in no
High Court cases at all (Andrews & Henshaw 1994, pp.49, 67, 51).

Gaelic is in a greatly weaker position than Welsh in a number of
respects. There are far fewer speakers (some 65,000 compared to
slightly over 500,000 at the last census), and those speakers are much
more thinly scattered in pertinent professional positions (e.g. among
lawyers and judicial officers). Further, because Welsh has long held a
stronger sociolinguistic and legal position, the development of a
formal legal register and vocabulary is considerably more
advanced.

Given these liabilities, it would seem impractical to move Gaelic
beyond point 2, and even that extension perhaps only in
"Gaelic-speaking areas" (however defined). Even following such a
change, it might be anticipated that relatively few parties and
witnesses would actually avail themselves of the opportunity to use
Gaelic, except perhaps in certain "political" cases directly
pertaining to the language. Such a reform, then, would probably be
largely symbolic — but symbolism in this arena, where some of
society's most important business is conducted, in an atmosphere of
formality and decorum reflecting that importance — is something
to be taken seriously.

Whether Gaelic could move to point 2, either throughout Scotland or
only within the Highlands and/or Islands, depends to a substantial
extent on the extent of the Scottish electorate's willingness to be
"impractical" regarding Gaelic's rôle in the legal system and,
perhaps more to the point, to spend money indulging that
"impracticality". As suggested above, this gets into complex questions
about Scottish national identity and Gaelic's rôle therein.

Substantive Legal Rights Relating to Gaelic

At present, because Gaelic has essentially no rôle in the
Scottish government or legal system, there are no enforceable legal
rights concerning the language. Even for the Crofters Commission and
Land Court, the only concrete guarantee is that one member of the
Commission and Court speak Gaelic — so that a litigant could
presumably protest successfully if confronted by a panel comprised
entirely of English monoglots, but could not be heard to
complain if a panel containing the requisite Gaelic speaker refused to
hear testimony in Gaelic from witnesses also competent in English.

As such, instituting some kind of official status for Gaelic could
— but, it must be emphasised, need not necessarily —
include a substantive component imposing enforceable obligations upon
government or granting enforceable rights to citizens. Proponents of
reform should therefore determine whether and to what extent official
status should actually provide enforceable guarantees, what form those
guarantees should take, and in what areas they should apply. All too
often, proponents of official status appear to have a vague and
sketchy conception, viewing official status as a panacea of sorts, and
do not recognise that nothing will bind government unless it is
spelled out clearly and unmistakably in operative legislation. At the
same time, the more teeth that are put in place with a grant of
official status, the more difficult it would be for such reform to be
politically successful, given fears of Gaelic irredentism and other
kinds of hostility. Moreover, no one will benefit if enforceable
rights are created that cannot be properly delivered. These
complexities mean that proposals for official status must be sensitive
and subtle, based on careful political decisions and tactics.

For example, legislation could create a basis for aggrieved persons
to file suit to demand the provision of (some or all) government
documents and services through Gaelic, such as bilingual road signs,
government forms and certificates, court rules, and official notices.
Alternatively, legislation could impose concrete obligations upon
government, such as the responsibility to make all forms available in
Gaelic, so that a government failing in any of these obligations would
be susceptible to an application for judicial review, on the ground
that such action (or inaction) was ultra vires (i.e. beyond its
power).

A more complex issue, involving serious questions of public
finance, would be the question of education; legislation could
establish a right for children to receive education in or through
Gaelic. (Those are two discrete issues, with the provision of a few
hours' instruction "in" basic Gaelic grammar to English monoglots
being much easier to arrange). Indeed, the Education (Scotland) Act
1980 (1980 c.44) already imposes some obligations on education
authorities with respect to Gaelic: every education authority is
required to provide "adequate and efficient . . . school education",
with the term "school education" defined to include "the teaching of
Gaelic in Gaelic-speaking areas". These burdens are not "sufficiently
defined to ensure any effective implementation", and have not been
tested in court (MacKinnon 1994, p.3). The phrase "teaching of Gaelic"
could readily be interpreted to mean nothing more than an hour or
two's instruction per week in Gaelic as a "foreign" language, and the
phrase "Gaelic-speaking areas" to mean only those island districts
with Gaelic-speaking majorities, all of which have voluntarily
instituted much more generous Gaelic programmes. Nevertheless, the
current legislation does preclude wholesale retrenchment in this area,
and could be used by "creative advocates . . . in support of a wide
application of this statutory duty" (Dunbar 1997, p.7); it could also
serve as the building-block for a more solid guarantee.

Above and beyond the problem of governmental foot-dragging,
however, there is a serious underlying issue in the inadequate supply
of qualified Gaelic teachers, a problem that cannot be rectified by
ordinary court orders. The short-term position would not be greatly
improved if underqualified, overstretched teachers were rushed into
schools under the cloud of litigation; and given the overall problems
of education expenditure and public finance more generally, it is most
difficult to foresee government acquiescing to confinement in such a
legal straitjacket.

Many reform proponents seem inclined to take a middle course in
this area, presenting vague principles and postponing the necessary
choices. For example, as noted above, SNP policy suggests that
Gaelic-medium education would only be provided "where reasonable
demand was expressed". Critical questions remain unanswered: What
would be considered "reasonable"? How and when would that demand have
to be "expressed"? Who would make the decision as to what was
"reasonable"?. In contrast, Brian Wilson proposed while in Opposition
that "every child in Scotland should have the right to be educated
through the medium of Gaelic", with the clear implication that such a
right would be binding and enforceable (The Scotsman, March 11,
1996, 4). Although the new Labour government has given encouraging
indications concerning the expansion of Gaelic-medium education in
both the primary and secondary sectors, the precise details remain
unclear, as does the extent to which such provision would be
underpinned with legally enforceable guarantees.

The question of enforceable guarantees places reform proponents on
the horns of a dilemma. "Official status" that amounts to little more
than fine words would be easier to achieve than legal recognition that
would require real action by government, but a substantive form of
official status might well give rise to both political crises and
false hopes. In any event, reform proponents need a clear strategy and
a clear vision.

Private Offshoots

Official status for Gaelic might also lead to an increased rôle
for the language in the private sector, particularly among voluntary
organisations and within recently denationalised industries. Although
a shift in government policy would not make such changes mandatory
— unless they were specifically legislated — the expansion
of the rôle and visibility of Welsh in the private sector
following legal recognition suggests that some benefit for Gaelic
would ensue through voluntary action. Official status would tend to
create a climate wherein bilingualism was viewed with increasing
favour, so that companies might find advantages in terms of marketing
and public relations by adopting Gaelic policies and using Gaelic in
tangible ways (Morgan interview 1996). Such changes would expand the
use and visibility of Gaelic in new spheres, further buttressing the
public position of the language.

For example, British Telecom (BT) has refused to make recorded
Gaelic instructions available from pay telephones, as it does with
Welsh. BT has emphasised the official status of Welsh in justification
of its position, even though that status extends only to Wales,
telephones throughout the U.K. have Welsh instructions available, and
there are far more Gaelic speakers than Welsh speakers in Scotland.
Similarly, the utility company Manweb, whose territory extends into
north Wales, has instituted a bilingual scheme, while its parent
company, Scottish Power, has done nothing comparable with respect to
Gaelic (Morgan interview 1996). Official status for Gaelic would tend
to induce more favourable responses from entities of this kind, as
well as voluntary bodies concerned about their public image.

Official Status and the Elaboration of Gaelic

A different, and perhaps more immediately significant aspect of a
possible amplified rôle for Gaelic in the legal system would be
the use of the language in official documents — from statutes
and regulations at the most formal level, through government reports
and policy documents, to mundane items like television licences and
council tax bills. Providing Gaelic versions of these documents would
spread the use of the language in new domains, increasing its
prominence and visibility, and, perhaps more important, aid in the
development of Gaelic as a sophisticated medium for intellectual
discourse and upper-register usage. On the other hand, from the
standpoint of working toward Gaelic's future as a spoken community
language, such efforts are probably of little value.

It would not be particularly difficult, or even particularly
expensive, to issue Gaelic versions of Scottish legislation and
regulations. The preparation of Gaelic forms would be more burdensome,
given the vast range of forms produced by the different arms of
government at its different levels, and the necessity of frequent
amendment and change. Any such burden could be minimised, however, by
staggering production so that papers most commonly used by ordinary
citizens (benefit applications, television licence forms, driver's
licence applications, and so on) would appear long before specialised
Internal Revenue and Customs forms of interest only to large-scale
businesses.

At the same time, there is little benefit in translating a huge
volume of material into Gaelic for its own sake; some degree of
balance has to be struck. Overinvestment in Gaelic translation of
questionable practical value might produce a backlash among those
ill-disposed to the language, who could be relied upon to complain
about the foolishness of the enterprise.

Such a policy of bilingualism would require a corps of paid
translators, sufficient in number to allow adequate time and care for
the work. High standards would be essential. Proper training both in
the law and in sophisticated English-Gaelic translation, and a
carefully controlled, centralised translation authority would be
necessary to ensure an appropriate degree of discipline for "Official
Gaelic".

Given the present level of development, an expansion of Gaelic's
official rôle would be of real assistance in what Fishman has
called the process of elaboration — "whereby a language
is extended and adapted for use in new domains" (Ruiz 1990, p.15;
Fishman 1974). Putting Gaelic to use for official purposes would
facilitate the development of a legal lexicon and register that would
allow the full use of Gaelic in official settings. Such a development
would be of very substantial benefit to the general position of the
language.

At present, Gaelic not only lacks an impersonal official register
but is impoverished in all upper-level registers; as Donald Macaulay
comments, because Gaelic "lacks the rich controlling agency of a daily
newspaper and a technical and semi-technical press in which new terms
become established through frequent and consistent usage", "usage is
irregular and inconsistent and there is strong evidence of poor
control of technical vocabulary" (MacAulay 1986, p.123). For
generations the Gaelic Bible served as the touchstone of high-register
Gaelic, but today many younger Gaelic speakers can no longer
understand this "high church" register and "a whole range of
grammatical and syntactical and idiomatic usages" are lost to them
(Thomson 1994, p.230). Younger speakers in particular "often have an
impoverished range of vocabulary, showing a lack of synonyms and [of]
an ability to change to appropriate levels of the upper register"
(Meek 1990, p.11). Gaelic urgently requires a modern source of formal
expository excellence.

Although the tradition of Gaelic legal writing goes back many
centuries longer than that of English, to the Irish law tracts of the
eighth century, it has been dormant for some centuries and
reconstruction must begin almost from scratch. The creation of Gaelic
equivalents for English legal terms is an essentially uncomplicated
task, though it would require painstaking work by authoritative
translators. Indeed, Gaelic speakers might well end up finding the
language of the law more accessible than do English speakers, for
Scots law is burdened with a number of obscure terms, impenetrable to
the lay person, that reach far back into the medieval period.

Legal usage differs from ordinary language in important respects:
its use of highly specialized terms and phrasings and a formal style
designed to convey seriousness of purpose and eliminate ambiguity. In
English, legal language's purpose of conveying seriousness and
eliminating ambiguity is sometimes successful, producing extremely
clear, carefully phrased, highly formal prose, and sometimes not,
yielding repetitive, obscurantist gibberish. Because Gaelic is
something of a blank slate, unburdened by the historical detritus of
the Anglo-Scottish legal vocabulary, there is a great opportunity to
develop, in Derick Thomson's words, "a spare, clear, elegant Gaelic
for official purposes" (Thomson 1979, p.21).

As part of a policy of "extend[ing] the frontiers" of Gaelic's
rôle with modest intensity and at modest cost, the Government in
recent years has issued various documents bearing on Gaelic issued in
bilingual form (Poilisidh Nàiseanta airson na
Gàidhlig, p.9). To date, however, the Gaelic prose in such
documents has tended to be infelicitous, imprecise, and insufficiently
attentive to register. These documents are evidently written in
English first and then translated into an unnuanced, colloquial Gaelic
that, if re-translated literally, would be seen as manifestly
unsuitable. In the worst cases this bureaucratic "Gaelic" consists of
"a kind of jargon which uses Gaelic vocabulary most of the time, but
with a semi-understood syntax" (Thomson 1994, p.233).

The Welsh experience is instructive. There is a recognised
distinction between classical literary Welsh and Cymraeg Byw
("Living Welsh"), and some proposed following the 1967 Act that
government documents should be issued in Cymraeg Byw so that
they "would be more easily understood by the average person". However,
the prevailing view was that "[a] Government report in English which
contained forms such as 'won't', 'shouldn't', and 'shan't' would
rightly be looked at askance" and "[a] legal document full of weighty
phrases and subordinate clauses, qualifications and restrictions could
hardly be translated using the forms of Cymraeg Byw, unless the
English document was first subject to thorough simplification".
Additionally, "classical" Welsh has been molded to suit the 20th
century, with its boundaries "gradually but persistently extended . .
. by combining an investigation into issues and subjects where Welsh
had not hitherto ventured and an exploitation of all the resources
classical Welsh had to offer" (Prys Jones 1988, pp.177-78).

The European Dimension

European Community law is also relevant, for an expansion of Gaelic's
official status would increase its stature in European terms, and
might serve as a spur to the U.K. government to provide more support
for the language. Pertinent here is the European Court of Justice's
landmark 1989 decision in Groener v. Minister of Education,
which held that because of the constitutionally guaranteed official
status of the Irish language in the Irish Republic, a Dublin college
could lawfully impose an Irish-language requirement for an art
lecturing post, even though knowledge of Irish was not actually
required to perform the job and European law is founded on the
principle of free movement of workers between member states.

Commentators have argued that the Groener rule would
probably not apply if such a job requirement were imposed for a
minority language without official status (De Witte 1991, p.170).
(This must of course be distinguished from the imposition of
minority-language requirements for posts in which use of that language
is in fact necessary to the work, requirements that are perfectly
valid). Similarly, it is open to question whether the principle would
hold with respect to posts less culturally sensitive than that of a
teacher (Ó Máille 1990, p.39).

The European Charter for Regional or Minority Languages, which was
introduced in 1993 and guarantees various forms of institutional
support for certain linguistic minorities, is an important if limited
step forward. Despite the modestness of the Charter's scope, easily
satisfied by the current provision for Gaelic, the British government
has refused to become a signatory despite the presence in Britain of
several substantial indigenous and immigrant language communities
(Dunbar, forthcoming).

Although Brussels may seem more favourably inclined toward minority
languages than Westminster, its attitude reflects not so much
solicitude for linguistic minorities as the need to preserve the
balance of the major member states. "It is precisely the great
import[an]ce the European states attach to their national languages
which motivates their backing of linguistic pluralism in the Community
context . . . . A strong commitment to monolingualism, if multiplied,
necessarily results in support for multilingualism". As such,
"Community organs have been careful to lend support to an ethos of
multilingualism without being too specific as to the policy measures
that such an ethos requires if it is to be more than lip service"
(Coulmas 1991, pp.14-15).

The Community has chosen not to adopt measures with real teeth. For
example, the European Parliament adopted a resolution in 1977
recognising "the right of Community citizens to use their mother
tongue . . . in court actions", but this resolution was never put into
effect with implementing legislation (De Witte 1991, pp.171). Had such
legislation been put in place, the sweeping Taylor rule could
not stand.

Official Status and Minority Languages: Some International
Parallels - Welsh in Wales

In contrast to Gaelic in Scotland, the Welsh language has long been
the primary badge of Welsh national identity. As a result of this
special position, and the demographic strength of the language, Welsh
has come to achieve significant official status.

Unlike Gaelic, which never suffered any explicit legal
proscription, Welsh was officially banned from the courts in Wales by
the Act of Union of 1536 (Law of Wales 1535-36, 27 Hen. 8 c.26, s.17).
This proscription was lifted with the Welsh Courts Act 1942, which
allowed the use of Welsh "in any court in Wales by any party or
witness who considers that he would otherwise be at a disadvantage by
reason of his natural language being Welsh" (5 & 6 Geo. 6 c.40, s.1),
a provision hardly more generous than the Taylor rule in
Scotland. This was superseded by the more sweeping Welsh Language Act
1967, which provided that "[i]n any legal proceedings in Wales the
Welsh language may be spoken by any party, witness or other person who
desires to use it" (1967 c.38, s.3). The currently operative statute
is the Welsh Language Act 1993 (1993 c.38), which retains the 1967
Act's provision concerning the use of Welsh in legal proceedings
(s.22(1)), but also, among other things, requires all public bodies in
Wales to institute bilingual schemes based on "the principle that in
the conduct of public business and the administration of justice in
Wales the English and Welsh languages should be treated on a basis of
equality" (s.5(2)). The 1993 Act, however, was a profound
disappointment to many in Wales who had sought more fundamental
guarantees for the language (Dunbar 1997, p.7).

One legal commentator suggested in the wake of the Taylor
decision in 1982 that the different treatment accorded Gaelic and
Welsh could be challenged as a violation of Article 14 of the European
Convention on Human Rights, which prohibits discrimination with
respect to the enjoyment of the rights and freedoms contained in the
Convention, in that Welsh speakers are permitted to use Welsh in legal
proceedings irrespective of their command of English, while Gaelic
speakers enjoy no such latitude (Evans 1982, p.279). This argument,
however, has not been put to the test.

Irish in Ireland

The Irish language commands high official status in the Irish
Republic. Article 8 of the Constitution of 1937 (Bunreacht na
hÉireann) enshrines Irish as "the first official language",
with English recognised as "a second official language". Bunreacht
na hÉireann is written in both languages, with the Irish
version deemed to prevail in the event of a dispute in the
interpretation of the two texts. Today, however, statutes in the
Republic are almost invariably enacted in English, with the legally
mandated Irish versions only issued years after the fact (Ó
Máille 1990, pp.17-18).

Despite this valuable constitutional position for the language, it
is significant that "the constitutional provision regarding Irish is
not phrased in the form of a right" but merely "cast in the form of a
declaration", which is an enormous distinction in legal terms since
the latter does not typically provide enforceable guarantees (Ó
Máille 1990, pp.26, 31). The Irish government has never enacted
appropriate implementing legislation to give full force to the
constitutional provision, or indeed to explain what the unique and
elusive terms "the first official language" and "a second official
language" mean. In light of these gaps, activists continue to press
for legislation that "would copper-fasten the rights of citizens to
use either Irish or English in all domains of life and . . . guarantee
that the state . . . make available, with equal facility and access,
all public services in both official languages" (Ó
Riagáin 1993, p.6). The position of Irish is nevertheless much
more favorable than that of Gaelic; among other things, some
substantive rights have been inferred from the constitutional
provision and it has been repeatedly held, in contrast to the
Taylor rule in Scotland, that "[a] person who wishes to conduct
proceedings through Irish before any court or tribunal has a
constitutional right to do so, irrespective of whether he/she could do
so equally well (or even better) in English" (Ó Máille
1990, p.17).

Irish also enjoys a degree of official status within the European
Community, where it is designated as an "official", though not a
"working", language. Nevertheless, even with this secondary status
Community treaties must be translated into Irish, and "the ease with
which the language coped with that special idiom is itself a mark of
the success which has attended the [Irish government's] efforts to
reintellectualize Irish and restore its use to a full range of public
functions" (Ó Murchú 1982, p.49).

Rumantsch in Switzerland

Rumantsch is the fourth language of Switzerland, a Romance language
spoken by some 40,000 people (some 2% of the national population) in a
handful of isolated mountain valleys in eastern Switzerland. Almost
all Rumantsch speakers are bilingual, usually with German (Watts 1991,
p.84).

Under the Swiss Constitution of 1938, Rumantsch was designated,
along with German, French, and Italian, as one of four "national"
languages, but not one of the three "official" languages. As a result
of Switzerland's federal structure of government and tolerant attitude
toward multilingualism, even this secondary status allowed
Rumantsch-speaking cantons to use Rumantsch in administration, the
legal system, and the school system (Watts 1991, p.84). Rumantsch is
used for the first four years of primary school, but side by side with
intensive German, and all secondary education is German-medium. A
nationwide referendum in March 1996 produced a three-to-one vote in
favour of a constitutional amendment granting full official status to
Rumantsch along with the more powerful languages (The Scotsman,
March 11, 1996, p.7).

As with other minority languages that have not benefitted from a
centralised standard, and to a degree even greater than Gaelic, the
use of Rumantsch for official purposes is hindered by dialectical
fragmentation, but diligent efforts are under way to develop a uniform
standard (RumantschGrischun) (Galloway 1995, p.96).
This process is likely to intensify given its newly won full official
status.

Conclusion

Official status for Gaelic, an idea being advanced by a number of
influential organisations and individuals, would be a important
development in a number of respects. Institutionalising Gaelic in law
and government would increase the stature and visibility of the
language in several important domains, adding significantly to its
increasing rôle in Scottish life. At the same time, there are
indications that the issue of official status may be receiving undue
stress, with such reforms viewed as some sort of magical panacea for
the many difficulties that ail Gaelic. Granting official status can be
little more than a token gesture, and even the significance of a more
substantive reform may be limited in terms of its impact on Gaelic's
demographic future. Any campaign for official status needs to keep
matters in perspective and to allocate resources appropriately.

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